Citation Nr: 0836993
Decision Date: 10/28/08 Archive Date: 11/05/08
DOCKET NO. 05-30 935 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an effective date prior to June 7, 2004, for a
total disability rating based on individual unemployability
due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Lawson, Counsel
INTRODUCTION
The veteran served on active duty from June 1967 to June
1969, including combat service in the Republic of Vietnam,
and his decorations include the Combat Infantryman Badge.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2004 rating determination
of the Department of Veterans Affairs (VA) Regional Office
(RO) in St. Petersburg, Florida denying an effective date
prior to June 7, 2004 for a TDIU. The veteran had perfected
other appeals, including an appeal for an earlier effective
date for a 50 percent rating for hearing loss and an even
higher rating for hearing loss, prior to the transfer of the
case to the Board, but in August 2008, he withdrew those
appeals.
FINDING OF FACT
1. The veteran is service-connected for PTSD, rated as 50
percent disabling from June 2003; tinnitus, rated as 10
percent disabling from October 2002; and hearing loss, rated
as noncompensable prior to June 7, 2004, and as 50 percent
disabling from June 7, 2004. He is also service-connected
for malaria and residuals, surgery for torsion right
testicle, rated as noncompensable.
2. On June 7, 2004, the veteran he filed a claim seeking a
TDIU.
3. In a November 2004 rating decision, the RO granted
entitlement to a TDIU, effective June 7, 2004.
4. Prior to June 7, 2004, the veteran did not have a single
service-connected disability rated at least 40 percent with a
combined rating of 70 percent or more.
5. There is no medical evidence showing that the veteran's
service-connected disabilities rendered him unemployable at
any time during the year prior to June 7, 2004.
6. Prior to June 7, 2004, the case did not presents such an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards.
CONCLUSION OF LAW
An effective date earlier than June 7, 2004, for the award of
a TDIU, is not warranted. 38 U.S.C.A. § 5110 (West 2002);
38 C.F.R. §§ 3.400, 4.16 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
As required by 38 U.S.C.A. § 5103(a), prior to the initial
unfavorable agency of original jurisdiction (AOJ) decision,
the claimant must be provided notice consistent with 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). This notice
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; and (3) inform the
claimant about the information and evidence the claimant is
expected to provide. For claims pending before VA on or
after May 30, 2008, 38 C.F.R. § 3.159 was recently amended to
eliminate a requirement that VA request that a claimant
submit any evidence in his or her possession that might
substantiate the claim. See 73 FR 23353 (Apr. 30, 2008).
For an increased-compensation claim, such as this one,
section 5103(a) requires, at a minimum, that the Secretary
notify the claimant that to substantiate a claim, the
claimant must provide, or ask the Secretary to obtain,
medical or lay evidence demonstrating a worsening or increase
in severity of the disability and the effect that worsening
has on the claimant's employment and daily life. Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008).
As with proper notice for an initial disability rating and
consistent with the statutory and regulatory history, the
notice must also provide examples of the types of medical and
lay evidence that the claimant may submit (or ask the
Secretary to obtain) that are relevant to establishing
entitlement to increased compensation- e.g., competent lay
statements describing symptoms, medical and hospitalization
records, medical statements, employer statements, job
application rejections, and any other evidence showing an
increase in the disability or exceptional circumstances
relating to the disability. Vazquez-Flores.
The RO's June 2004 and May 2008 letters describing the
evidence needed to support the veteran's claim were not both
timely mailed before the November 2004 rating decision. Only
the June 2004 letter was. The letters described the evidence
necessary to substantiate a claim for an increased rating,
identified what evidence VA had collected and was collecting,
requested the veteran to send in particular documents and
information, identified what evidence (including lay
statements and medical evidence) might be helpful in
establishing his claim, and invited the veteran to send VA
whatever evidence he had in his possession pertaining to his
claim. The May 2008 letter discussed what evidence was
necessary with respect to the effective date of an award.
Although the veteran has not raised any notice issues, the
failure to provide complete, timely notice to the veteran
raises a presumption of prejudice, so that VA has the burden
to establish that the veteran was not, in fact, prejudiced by
the inadequate notice. Sanders v. Nicholson, 487 F.3d 881
(Fed. Cir. 2007).
Here, the veteran was not prejudiced by the flaws in the
original letter. First, in the May 2008 letter, the veteran
was notified of the need to present evidence to establish an
effective date of an award. Then, after the flaws in the
original letter were cured, the RO readjudicated the claim in
July 2008.
VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A.
§ 5103A. In this case, VA obtained VA medical records and
lay statements from the veteran. VA examinations were
conducted in September and October 2004. VA has satisfied
its assistance duties.
The veteran contends that he is entitled to an effective date
prior to June 7, 2004, for the grant of a TDIU. He states
that the effective date should be June 17, 2003.
The provisions governing the assignment of the effective date
of an increased rating are set forth in 38 U.S.C.A. § 5110(a)
and (b)(2), and 38 C.F.R. § 3.400(o). A claim for a TDIU is
a claim for an increased rating. Dalton v. Nicholson, 21
Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet.
App. 449, 451-52 (2000).
The general rule with respect to effective date of an award
of increased compensation is that the effective date of award
"shall not be earlier than the date of receipt of the
application thereof." 38 U.S.C.A. § 5110(a). This
statutory provision is implemented by regulation that
provides that the effective date for an award of increased
compensation will be the date of receipt of claim or the date
entitlement arose, whichever is later. 38 C.F.R.
§ 3.400(o)(1).
An exception to that rule regarding increased ratings
applies, however, under circumstances where the evidence
demonstrates that a factually ascertainable increase in
disability occurred within the one-year period preceding the
date of receipt of a claim for increased compensation. If an
increase in disability occurred within one-year prior to the
claim, the increase is effective as of the date the increase
was "factually ascertainable." If the increase occurred
more than one year prior to the claim, the increase is
effective the date of claim. If the increase occurred after
the date of claim, the effective date is the date of
increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21
Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997);
38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).
For VA purposes, total disabilities ratings for compensation
may be assigned, where the schedular rating is less than
total, when the disabled person is, in the judgment of the
rating agency, unable to secure or follow a substantially
gainful occupation as a result of service-connected
disabilities, provided that, if there is only one such
disabilities, this disability shall be ratable at 60 percent
or more, and that, if there are two or more disabilities,
there shall be at least one disability ratable at 40 percent
or more, and sufficient additional disabilities to bring the
combined rating to 70 percent or more. For the above purpose
of one 60 percent disability, or one 40 percent disability in
combination, the following will be considered as one
disability: (1) disabilities of one or both upper
extremities, or of one or both lower extremities, including
the bilateral factor, if applicable, (2) disabilities
resulting from common etiology or a single accident, (3)
disabilities affecting a single body system, e.g. orthopedic,
digestive, respiratory, cardiovascular-renal,
neuropsychiatric, (4) multiple injuries incurred in action,
or (5) multiple disabilities incurred as a prisoner of war.
38 C.F.R. § 4.16(a) (2007).
Also, it is noted that it is the established policy of VA
that all veterans who are unable to secure and follow a
substantially gainful occupation by reason of
service-connected disabilities shall be rated totally
disabled. Therefore, rating boards should submit to the
Director, Compensation and Pension Service, for
extra-schedular consideration all cases of veterans who are
unemployable by reason of service-connected disabilities, but
who fail to meet the percentage standards set forth in
paragraph (a) of this section. The rating board will include
a full statement as to the veteran's service-connected
disabilities, employment history, educational and vocational
attainment and all other factors having a bearing on the
issue. 38 C.F.R. § 4.16(b) (2007).
A review of the record shows that a VA audiogram in December
2002 did not warrant a compensable rating, and that on VA
evaluation in May 2003, it was reported that there had not
been a significant change since his last evaluation and that
his word discrimination was 92 percent bilaterally.
On June 17, 2003, the veteran applied for increased ratings
for hearing loss and post-traumatic stress disorder (PTSD),
indicating that he had been having difficulties obtaining
gainful employment because of his disability.
A July 2003 VA psychiatric examination report showed that he
had worked for the post office for 33 years and had left 1
1/2 years before the examination. He reported that he had no
friends and that he had had a depressed mood for a long time,
and he appeared depressed and cried some during the
interview. He had decreased concentration and occasionally
made statements about death or wanting to die and occasional
suicidal ideation. He had 2 years of college and was living
with his wife and granddaughter. He was well groomed,
pleasant, and cooperative but had very poor eye contact and
spent the majority of the time talking with his eyes closed.
His speech was normal and his mood was reported as okay, but
he was depressed with some crying. His thought processes
were goal directed and coherent and he reported that he was
very nervous. He had suicidal ideation but no plans. He was
oriented and had intact concentration and was able to
calculate for a simple math problem. Judgment and insight
were fair. The diagnoses were PTSD and major depression, and
his global assessment of functioning was 50 for serious
symptoms and any serious impairments of social, occupational,
or school functioning.
The RO increased his PTSD rating to 50 percent in August
2003, and continued his noncompensable rating for hearing
loss. The veteran was apprised of his appeal rights and he
did not appeal. That decision became final.
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2007).
On June 7, 2004, the veteran applied for a TDIU. He
mentioned other disorders including PTSD as causing his
unemployability, but not hearing loss.
The findings of the October 2004 VA audiometric examination
resulted in the RO granting a 50 percent rating for hearing
loss, effective June 7, 2004. The RO also found the veteran
entitled to individual unemployability due to
service-connected disabilities effective from June 7, 2004,
the date the veteran had filed his claim for TDIU and also
the same date that the veteran's hearing loss 50 percent
rating was effective from. The RO considered the October
2004 VA audiologist's statement that the veteran would be
expected to experience difficulty in many communication
situations, especially in the presence of background noise,
and that if verbal interaction was important to his job, his
employability may be significantly affected by his hearing
loss. The RO found that the veteran was unemployable as a
result of his service-connected disabilities, mainly PTSD and
hearing loss.
Prior to the increased rating for the veteran's hearing loss
from 0 percent to 50 percent, effective from June 7, 2004,
the veteran did not meet the schedular criteria for a TDIU,
but as of that date, he did. The Board does not have the
authority to assign an extraschedular rating in the first
instance under 38 C.F.R. § 3.321(b)(1). See Floyd v. Brown,
9 Vet. App. 88, 94-97 (1995). Further, in Bowling v.
Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its
decision in Floyd, similarly held that the Board cannot award
a TDIU under 38 C.F.R. § 4.16(b) in the first instance
because that regulation requires that the RO first submit the
claim to the Director of the Compensation and Pension Service
for extraschedular consideration.
The evidence of record fails to show an increase in
disabilities warranting a TDIU prior to June 7, 2004. The
veteran had had an audiogram in December 2002 that did not
warrant a compensable rating, and in May 2003, it was
reported that there had not been a significant change since
his last evaluation and that his word discrimination was 92
percent bilaterally. Indeed, there is no medical evidence
dated in the year prior to June 7, 2004, showing that he was
unemployable due to his service-connected disabilities, and
thus, in assigning June 7, 2004, as the effective date of the
TDIU, VA has already assigned the earliest possible effective
date. It thus follows that an effective date prior to that
time must be denied.
In conclusion, the Board finds that the criteria for a TDIU
were not met prior to June 7, 2004, and that the evidence of
record did not factually show that unemployability due to
service-connected disabilities warranting a total rating
based on individual unemployability arose prior to that time.
As such, an effective date prior to June 7, 2004, for a TDIU
is not warranted. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. VA
is bound under the controlling statute and regulations, which
provide no basis for the award of an effective date earlier
than June 7, 2004. Further, the evidence does not show that
exception factor were present prior to June 7, 2004, and thus
referral for extraschedular consideration under 38 C.F.R.
§ 4.16(b) is not warranted. Thus, the veteran's claim must
be denied.
ORDER
Entitlement to an effective date earlier than June 7, 2004,
for the grant of a total disability rating due to individual
unemployability (TDIU) is denied.
____________________________________________
STEVEN D. REISS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs